Children's counsel role can prove damaging in divorce process

Where custody or access to children is contested, courts are directed to canvass the views of the affected children — but there are good reasons to proceed cautiously in this regard, Toronto family lawyer Brian Ludmer writes in Law Times.

As Ludmer, principal of LudmerLaw, explains: “The process of asking children their opinions creates the risk of triangulating the child further into an inter-parental dispute, and it can potentially create or contribute to an alliance of one parent and child against the other parent or against other children.”

Through legislation, jurisprudence and procedural practices, provinces have recognized a number of ways of enabling the voice of the child to be taken into account by the courts, explains Ludmer. These include a judicial interview, a custody/access forensic assessment, indirect testimony through a children’s therapist, parents or others or through counsel for the child.

However, he writes, “in my opinion, the potentially most damaging option of all the methods is appointing counsel for a child.”

Since the Ontario Court of Appeal’s 1994 decision in Strobridge, explains Ludmer, “it is clear that the role of counsel for a child is to be an advocate and not a guardian acting in the child’s best interests. This creates a difficult dynamic where children are elevated almost to the position of parties in their parents’ litigation, often becoming overempowered and triangulated into their parents’ disputes, with the result that the child’s relationship with one parent is damaged.”

Counsel for a child cannot advance evidence based on his or her own interviews of the child, and, because of the advocate role, the file of children’s counsel is not available to be reviewed by the parents, explains Ludmer.

Interviewing skills and practices of children’s lawyers can therefore not be tested, he writes.

“Through the appointment of counsel, a process meant to support a balanced inquiry into children’s needs and the ability and willingness of parents to meet those needs often gets diverted. Instead, it turns into a focus on the child’s wants, as opposed to the child’s needs,” says Ludmer.

Although there is an opportunity for a child’s counsel to be assisted by a social worker from a panel of eligible referrals, Ludmer says there is no ability to interview the practitioner for experience, potential biases and their approaches to the services to be provided.

There are also a number of standards and expert texts about how to conduct forensic child custody/access assessments, but there are no similar standards generally practiced and consistently applied for the children’s counsel role.

“In cases where children are showing unhealthy levels of alignment or enmeshment with one parent or rejection of the other parent, the practice of vetting the independence of children’s views and preferences is again without consistent standards and training. Children’s counsel may not have a robust and up-to-date understanding of the extent of children’s suggestibility and risk of manipulation in the course of a contested custody dispute. It is incumbent upon children’s counsel to express to the court whether, in their view, the children’s statements are reliable. However, practices in this regard lack consistency,” writes Ludmer.

And for parents dealing with counsel for their children who may be taking an unknown position or position adverse in interest to them, Ludmer says the experience is generally quite upsetting.

Ultimately, writes Ludmer, giving children a seat at the table of their own parents’ divorce triangulates them as opposed to insulating them from the effect of divorce.

“There are better methods to determine children’s needs and an understanding of their parents’ ability and willingness to meet those needs.”